By Aidan Vining and Avery Kavanaugh
The SCC confirms a limited statutory right of appeal does not preclude an individual from seeking judicial review for questions not dealt with in the appeal
Background
In this decision, the Supreme Court of Canada (SCC) considered the proper approach to judicial review where there is a limited statutory right of appeal. The decision also addressed whether it was reasonable for Ontario’s Licence Appeal Tribunal (the LAT) to deny an insured person’s request for benefits as time-barred.
Ms. Yatar was injured in a motor vehicle collision in 2010. Following the collision, Ms. Yatar’s insurer, TD Insurance Meloche Monnex, began paying her the accident benefits to which she was entitled. In January of 2011, TD stopped paying Ms. Yatar’s accident benefits because she failed to provide a completed disability certificate. Ms. Yatar’s income replacement benefits were briefly reinstated in February of that year before again being terminated.
At the time of the collision, the Insurance Act provided for a two-year limitation period after the insurer’s refusal to pay the benefits to commence a proceeding and mandatory mediation as a first step to resolve a dispute, which extended the limitation period to 90 days after the mediator provided their report.
The LAT
Ms. Yatar contested the denial of her benefits before the LAT in March of 2018. The LAT dismissed her application on the basis that it was filed too late, and her subsequent request for reconsideration was also dismissed by the LAT.
Pursuant to section 11(6) of the Licence Appeal Tribunal Act, Ms. Yatar had a limited statutory right of appeal to the Divisional Court of Ontario. Section 11(6) provides that an appeal from a decision of the LAT relating to a matter under the Insurance Act may be made on a question of law only.
Ms. Yatar subsequently appealed the LAT’s reconsideration decision to the Divisional Court. At the same time, Ms. Yatar also made an application for judicial review of the decision to the Divisional Court.
Divisional Court
The Divisional Court dismissed Ms. Yatar’s appeal. The Court held that she failed to show an error of law in the LAT’s reconsideration decision.
With respect to Ms. Yamar’s application for judicial review, the Divisional Court concluded that, per Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, the limited right of appeal in the LAT Act “did not deprive the court of jurisdiction to consider other aspects of a decision in judicial review proceedings”.
The Divisional Court considered four factors when deciding whether to exercise its discretion to undertake judicial review in this case: (i) the legislative intent to limit judicial review of LAT decisions on statutory accident benefits to questions of law only, (ii) the breadth of the LAT’s reconsideration power, (iii) the nature of the alleged errors, and (iv) the systemic difficulties associated with dealing with judicial review and an appeal.
The Divisional Court ultimately concluded that there were “no exceptional circumstances” in this case to justify judicial review, and the application was dismissed.
The Court of Appeal
Ms. Yatar then appealed the Divisional Court’s decision to dismiss her application for judicial review to the Ontario Court of Appeal.
The Court of Appeal held that only in “rare cases” will the remedy of judicial review be available where there is a limited right of appeal. The Court of Appeal held that the legislature intended to limit the recourse to the courts arising from decisions of the LAT.
The Court of Appeal also concluded that Ms. Yatar failed to show that the LAT’s decision failed on the “presumptive standard of review of reasonableness”. Thus, while the Court of Appeal concluded that judicial review of the LAT adjudicator’s decision ought not to have been considered, the application would have nonetheless been denied as the LAT adjudicator’s decision on the reconsideration was reasonable.
The Supreme Court of Canada
Ms. Yatar subsequently appealed to the Supreme Court of Canada. The SCC considered the decisions of the Divisional Court and the Court of Appel and concluded that judicial review was available to Ms. Yamar for issues not dealt with under the statutory right of appeal.
Justice Rowe, writing for the SCC, held that Vavilov contemplated instances where an applicant is pursuing both a statutory appeal on questions of law and judicial review on questions of fact and mixed fact and law. In those instances, the questions of law being appealed will be subject to review on standard of correctness while questions of fact and mixed fact and law will be subject to review on standard of reasonableness.
Despite the statutory right of appeal being limited to questions of law, judicial review is available for questions of fact or mixed fact and law. As such, a statutory right of appeal will not preclude an individual from seeking judicial review for questions not dealt with in the appeal. Rather, it is a matter of discretion as to whether to undertake judicial review, having regard to the framework for analysis set out in Strickland v Canada (Attorney General), 2015 SCC 37.
The SCC held that the Court of Appeal erred in its application of the Strickland factors, and confirmed there is no basis to infer legislative intent to eliminate judicial review for issues of fact and mixed fact and law outside the scope of a statutory appeal. The Court quoted Professor Paul Daly to re-affirm that “a person has a right to seek judicial review, and [to] give courts a discretion not to hear judicial review applications…would allow judicial discretion to trump [a] constitutional principle”. Furthermore, only where there was an appropriate alternative forum or remedy will the jurisdiction of the courts to judicial review be successfully ousted by statute.
The LAT Adjudicator’s Decision Was Unreasonable
The LAT adjudicator in 2019 held that the limitation period for appeal had lapsed on April 14, 2014, after the ninety-day extension following the report of the mediator. The SCC confirmed that the limitation period can only be triggered when benefits are validly terminated again, and in this case, Ms. Yatar’s benefits had been reinstated. The relevant sections of the Insurance Act and the SABS at the time did not trigger a 90-day limitation period from the release of the mediator’s report, rather they provided for an extension of the two-year limitation period from the mediator’s report.
Given that the LAT adjudicator failed to consider relevant legal constraints, the decision was unreasonable, and Ms. Yatar’s matter was sent back to the LAT adjudicator for reconsideration.
In Conclusion
A limited statutory right of appeal does not preclude an individual from seeking judicial review for questions not dealt with in the appeal. Where there is a statutory right of appeal limited to questions of law, judicial review is available for questions of fact or mixed fact and law. However, while there is a right to seek judicial review, it is open to the judge before whom judicial review is sought to decide whether to exercise his or her discretion to grant relief — although this discretion does not extend to decline to consider the application for judicial review.
